Parental rights case before SJC highlights modern family life

Karen Partanen and Julie Gallagher were a couple for nearly 13 years. They sent birth announcements to family and friends, raised two children, and took family vacations. The children, who are now 4 and 7, call Partanen “Mommy” and Gallagher “Mama.”

But after Partanen and Gallagher ended their relationship in 2014, Gallagher argued that Partanen had no legal right to be the children’s parent.

The reason? The couple were never married, and Gallagher was the one who gave birth to both children, through artificial insemination.

On Tuesday, Partanen asked the Supreme Judicial Court to rule that she is a legal parent to the children, and should have the same rights as Gallagher.

Partanen’s case has the drawn the support of gay right advocates and infertility groups who believe it’s vital for the court to protect the rights of children conceived through donated eggs or sperm to unmarried couples, whether gay or straight.

The case prompted the justices to wrestle with the myriad ways families are created in an era of shifting relationship statuses and evolving reproductive technology.

“The two children in this case, like all children, deserve equal consideration under the law, whatever the circumstances of their birth,” Partanen’s lawyer, said one of Partanen’s four lawyers, Mary L. Bonauto, in her arguments to the SJC.

Bonauto said Partanen and Gallagher “mutually decided to create a family together” and then “raised and cared for those children in every way throughout the years, so they would know they had two parents and two sets of extended family.”

But Gallagher’s lawyer, Jennifer M. Lamanna, said Partanen cannot claim that she is a legal parent because the couple never married or entered into a domestic partnership or civil union.

Lammana also points out that Partanen has no biological relationship to the children, is not named on either child’s birth certificate, and never initiated adoption proceedings for either child.

Since the women are no longer in a relationship, Gallagher does not want to have to vet every decision about the children’s lives with Partanen, although she wants Partanen to still have a relationship with them, Lamanna said.

“What’s at issue here is my client’s legal rights as the only mother,” Lamanna told the state’s high court. “What Partinen seeks in this case is a path to parenthood that doesn’t require marriage, doesn’t require adoption, doesn’t require a signed voluntary acknowledgment of parentage and, in fact, can be imposed without the consent of a parent and over the objection of a fit parent.”

Lamanna said the court should protect Gallagher’s right to decide what is best for her children, just as if she were a single woman who had adopted children while dating a man and then broke up with the man.

“This is not a gay rights issue,” Lamanna said in an interview after Tuesday’s arguments. “This is a parents’ rights issue.”

Justice Robert J. Cordy asked Bonauto whether an infertile man would have a claim to be a parent if he agreed to let the woman he was dating conceive with donated sperm, and then their relationship ended a year after the baby was born.

“What about the mother?” Cordy asked. She may say, “‘I don’t want this fellow who was my boyfriend to be the child’s parent. The child is going to grow up for another 50 years.’”

Bonauto said that by agreeing to let his girlfriend use a sperm donor, the former boyfriend would be the legal parent because he had consented to “procreative activity,” just as if the couple had conceived through intercourse.

Chief Justice Ralph D. Gants raised the same scenario when questioning Lamanna.

Gants noted that a man who has sex with a woman is automatically considered the legal father — “no matter how he feels about it.” So shouldn’t an infertile man who agrees to let his girlfriend use a donated sperm also be considered a legal father, Gants asked.

“Why is it different?” he asked Lamanna.

Lamanna said that if the child had been conceived using a sperm donor, the former boyfriend would not be considered a legal parent because he had “not engaged in the old-fashioned way of creating a child, which is intercourse,” and did not marry the woman or adopt the child.

Partanen and Gallagher’s relationship started in Massachusetts about 15 years ago.

They moved for a time to Florida, where they bought a home together, and decided to have children. Both agreed to use artificial insemination and chose the sperm donor together, Bonauto said. Partanen even held the syringe for the insemination procedure for their second child, Bonauto said. Then the couple moved back to Massachusetts, and their relationship ended.

After that, Partanen wanted to adopt the children, but Gallagher refused, which prompted Partanen to file her legal claim to be a parent, Bonauto said. If approved, it would allow Partanen, along with Gallagher, to make decisions about the children’s education, medical care, and religious upbringing.

“I grew up in a large family, and that sense of family and permanency is what I want for my children,” Partanen said in a statement released by GLBTQ Legal Advocates & Defenders, the Boston-based gay rights group where Bonauto serves as civil rights project director.

Bonauto said the court should rule that Partanen is a legal parent because the couple “held themselves out” as parents to the children’s teachers and doctors.

She noted that under a 1986 Massachusetts state law, a “father” can claim to be a legal parent if “he, jointly with the mother, received the child into their home and openly held out the child as their child.”

“They told the kids, they told the wider community, they told the wider world that they were a family,” said Bonauto, who argued the 2003 SJC case that legalized same-sex marriage in Massachusetts.

Maura Healey, the nation’s first openly gay attorney general, has also backed Partanen’s claim.

In a legal brief, Healey notes that an increasing number of children in Massachusetts, and throughout the United States, are born to unmarried couples, gay and straight, who use donated eggs or sperm.

“It is important that the law provide a mechanism for these children to have two parents where there are in fact two people who mutually consented to creating them,” Healey wrote to the high court.

A group of 42 law professors who specialize in children’s rights have also filed a legal brief to bolster Partanen’s claim.

“Across the country, courts have recognized families like the one in this case and have protected their established parent-child bonds,” the professors wrote. “Excluding these families from legal protection would relegate children born to unmarried parents through assisted reproduction to a new class of ‘illegitimate’ children who are denied the security and stability of having two legal parents responsible for their support and care because of their parents’ marital status.”